COMMONWEALTH PENNSYLVANIA v. MILLARD BURTON (10/30/81)

Nos. 202, 203 April Term, 1979, Appeals from the Orders of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC780-5508.

COUNSEL

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.

Stanton D. Levenson, Pittsburgh, for appellee.

Cercone, President Judge, and Brosky and Hoffman, JJ.

Author: Hoffman

[ 292 Pa. Super. Page 75]

The Commonwealth appeals two orders of the lower court: the first, suppressing evidence seized from appellee's automobile; and the second, finding appellee not guilty of possessing a small quantity of cocaine. For the reasons which follow, we: (1) reverse the suppression order and remand for further proceedings; and (2) quash the appeal from the order finding appellee not guilty.

At approximately 1:50 a. m. on September 15, 1978, the doorman at Zelda's Greenhouse, a bar located on Forbes Avenue in Pittsburgh, informed Officer Ernest Tomasko that appellee was inside the bar and that he had a gun. Upon viewing appellee through the window of the bar, Officer Tomasko recognized him as the man he had seen leave the bar and go to a nearby automobile on several occasions throughout the evening. As appellee left the bar, Officer Tomasko approached him, and seized the gun which he saw beneath appellee's jacket. When Officer Tomasko asked appellee if he had a permit for the gun, appellee replied that it was located in the trunk of his car. Officer Tomasko and several other policemen who had responded to his request for assistance accompanied appellee to his car. Appellee could not unlock the trunk and claimed that he had dropped the key. While the officers assisted appellee in looking for the key, Officer Tomasko again asked him if he had a permit for the gun. When appellee admitted that he had no permit, Officer Tomasko immediately arrested him for possessing the gun without a license. A subsequent search of appellee incident to his arrest produced a small vial containing a marginal amount of white powder subsequently identified as cocaine. Contemporaneously with appellee's arrest and search incident, Officer John Sitarik, still looking for the missing trunk key, approached the driver's side of appellee's car and shined his flashlight into the interior. He then saw on the front seat a plastic bag containing a substance which he believed to be marijuana. While retrieving

[ 292 Pa. Super. Page 76]

the bag from the car, Officer Sitarik noticed a similar bag protruding from a partially opened briefcase. He then removed that bag from the briefcase and noticed that it contained a quantity of rice and a smaller plastic bag containing white powder which he believed to be cocaine.

As a result of the incident, appellee was charged with the following offenses: (1) possession with intent to deliver cocaine; (2) possession with intent to deliver marijuana; (3) possession of cocaine; (4) possession of marijuana; and (5) carrying a firearm without a license. Appellee subsequently filed a motion to suppress all of the evidence seized from his person and his automobile. Following a hearing on appellee's motion, the lower court upheld the seizure of the gun and the small vial containing cocaine but suppressed all of the evidence found in appellee's car. After a brief recess, the lower court conducted a non-jury trial on the charges of possessing cocaine and carrying a weapon without a license. Appellee was found guilty of the weapons offense and not guilty of possessing cocaine. These appeals followed.

The Commonwealth contends, inter alia, that the lower court erred in suppressing the evidence seized from appellee's automobile.*fn1 We agree. "Where police have a lawful right to be in the position of observation, they can lawfully seize objects in plain view. Harris v. United States, 390 U.S. 234,

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